Short Marriages Equal or Unequal Family Property Division? MacLean Law recently set a record $6.2 million family property recovery in a short disputed relationship of 2.5 years after a marathon 55 day trial. In our win, we successfully argued that the husband’s position:
- that unequal efforts and greater contribution by the husband who brought approximately $150,000,000 into the relationship;
- that lavish gifts of over $800,000 should be credited to the husband on the property claim;
- that they were never in a marriage like relationship for the requisite period because the wife didn’t love him;
did not prove she wasn’t entitled to her half share of the gain on his excluded property.
Justice Hughes concluded:
“His position is that a relationship cannot be ‘marriage-like’ unless the parties share romantic love for one another,” the judge said, summarizing this argument.
But love, the judge said, is not a legal “requirement” for marriage and never has been.
Our win got us thinking about misconceptions some family clients have about how available unequal division is to them upon separation. MacLean Law founder, Lorne MacLean KC, thought we should review two key recent BC Court of Appeal cases as well as our recent $6.2 million family property judgment to help people understand their family property division rights and entitlements under the Family Law Act.
Vancouver High Net Worth Short Marriages Equal or Unequal Family Property Division?
The key concept under the new act is that only in exceptional circumstances should potential growth in value during the short relationship as a result of pre- or during-relationship contributions justify a departure from equal division. It is contrary to the legislative policy to ground unequal division on a conclusion that one spouse “hitched [their] wagon” to an already successful and growing enterprise that the other spouse had spent years developing or brought into the relationship beyond the excluded starting value. The court concluded it was not surprising and that it is common for spouses to establish a relationship at a time when one spouse is beginning to see earlier efforts to build a business come to fruition, and to continue to build that business without the other spouse’s contribution or involvement. This factor does not justify unequal division given the starting excluded property protections.
The FLA came up with a new scheme of property division designed the strengthen the presumption of equal division and remove expensive conflict and use of court resources. Past discretion is now significantly constrained.
Short Marriages Equal or Unequal Family Property Division?
Short marriages and unequal family property division disputes after separation are becoming more frequent. Short marriages, where one party brought significant property into a “marriage like” or marriage relationship, present unique challenges for family law clients and their lawyers. The case law on unequal division in this cases was somewhat disparate with cases going for and against unequal division based on short duration and unequal efforts or financial contributions during the marriage as a primary factor.
Court Of Appeal Says Short Duration Relationship Not A stand Alone Factor to Depart From Equal Sharing
Recent Court of Appeal decisions have come down solidly on it being rare to use the short duration of the relationship and unequal contributions as stand alone factors justifying a successful departure from the presumptive unequal division.
In the December 2025 decision of Lamoureux v. Hedquist the BC Court of Appeal found that the trial Judge erred in reapportioning the increase in the value of certain family property during a tumultuous 5 year marriage-like relationship marred by frequent separations 75% in favour of the respondent husband on the basis that the presumptive equal division of the increase in value between the parties would be significantly unfair.
The Court of Appeal held:
[16] Given the issues on appeal, it is helpful to say a little more about this discretion. A court may depart from equal division where an equal division would be significantly unfair, but the discretion to do so is significantly constrained. As noted, the factors justifying unequal division must be rooted in the factors set out in FLA s. 95…..
[17] As explained in Jaszczewska v. Kostanski, 2016 BCCA 286, and confirmed consistently in subsequent cases:
[38] It is safe, therefore, to conclude that the Legislature intended to limit the circumstances in which a departure from equal division of family property could be justified because of unequal contributions to its acquisition, preservation, maintenance or improvement. The FLA starts with the presumption found in s. 81 that family property is to be equally divided. As I read s. 81, each spouse is presumptively entitled to an undivided half interest in all family property, regardless of their respective use or contribution. … Entitlement exists independent of contribution or use, and the extent of that entitlement on separation is defined in s. 81(b).
……
[18] This Court explained in Banh v. Chrysler, 2022 BCCA 74:
[27] The term “significant unfairness” creates a “high threshold”: V.J.F. v. S.K.W., 2016 BCCA 186 at para. 81, leave to appeal to SCC ref’d, 37091 (13 October 2016). In Singh, Garson J.A. provided the following helpful summary of various descriptions of the term:
[134] In summary, it is clear that the Legislature intended the general rule of equal division to prevail unless persuasive reasons can be shown for a different result: Jaszczewska at para. 41. Reapportionment will require something objectively unjust, unreasonable, or unfair in some important or substantial sense. This is in contrast to the previous legislation where courts had discretion under s. 65 to reapportion property or debt where it would be simply “unfair” not to do so. The threshold for “significant unfairness” is high. There must be a real sense of injustice that would permeate the result if the court did not deviate from the presumptive equal division.
Using Short Duration And The Excluded Regime under the FLA Is Inappropriate
In our record win we argued the new excluded property regime for assets owned prior to marriage or received by gifts or inheritances during the marriage already accounted for the short duration of a relationship by only sharing the GAIN.
We submitted that using the excluded property regime in our high net worth case already protected the wealthy spouse who brought significant property into the marriage and who paid for more during the relationship. We forcefully argued that the excluded property regime ensured that the gain was a small percentage of the “total property pie” given the short duration compared to what would be a much larger gain on a longer relationship. We said it was flawed legal logic to double down by then applying the duration of relationship section 95 2 (a) on top of the new excluded regime because the unequal division was already accounted for. In summary we said further reducing our client’s share of the gain under the excluded regime by then reducing it further under section 95 (2) (a) was an improper double dip.
We hope this win helps counsel and their clients settle matters.
Short Marriages Equal or Unequal Family Property Division?
The key takeaway for short relationships even with unequal contribution during them is that market gains unconnected to the sole efforts by one party after separation will not likely result in unequal division of the gain after the starting exclusion of property value brought by one spouse to the relationship. The concept is that both parties benefit from the windfall gain if property goes up through market conditions and it is not significantly unfair for this to happen.
How Do Short Marriages and Unequal Family Property Division Cases Work? 1 877 602 9900
It is really important for family clients and their lawyers to focus on what the legal test for unequal division of property is in short marriages. In prior legislation, unequal division could be obtained if it was unfair to divide family assets equally. Under the Family Law Act (that became effective in March 2013) the government tried to reduce the claims for unequal division and the costs and court time involved with these disputes by creating a new regime. This new scheme excluded the sharing of the value of property that parties brought to their relationship and then equally divided only the gain unless it would be significantly unfair to do so.
Another Appeal Case Focuses On Rejecting Short Duration Justifying Unequal Division
In the older BC Appeal Court decision of Banh v. Chrysler, 2022 BCCA 74 the husband was unsuccessful in supporting a trial judge’s unequal division of property that had a modest gain of $750,000 above the value of assets he brought into the relationship as at the date of trial. The parties had a nearly 4 year long relationship but the parties were married for only 2 years. To accomplish an unequal division a Judge can use an earlier date for valuation ( property was worth less the earlier the date under current conditions) or divide the gain unequally.
Short Marriages Equal or Unequal Family Property Division? 1 877 602 9900
The key factor on whether unequal division of the husband’s pre-relationship assets was whether the gain was related to rising real estate values as opposed to significant efforts to increase the value by one spouse after separation. In a nutshell, BC’s highest court held, after deciding the husband had been compensated for his efforts managing real estate rental properties, that the gain should be split equally. The Court of Appeal noted however the high threshold of significant unfairness before unequal division of gains on excluded property can occur.
Post-Separation Growth in Value
[45] On any fair reading of the judge’s reasons for judgment, he considered it significantly unfair for Ms. Chrysler to passively share in the tremendous growth in the equity of Victoria Properties A and B that occurred after the parties separated. Given that Mr. Banh alone had developed, managed and maintained the properties, the judge appears to have concluded that Ms. Chrysler was undeserving of a windfall. In my respectful view, the judge erred in reaching this conclusion for a number of reasons.
[46] First, the fact that Mr. Banh developed the rental properties is, in all the circumstances of the case, immaterial. Again, his prior ownership of the properties was conclusively dealt with under s. 85 of the FLA. As excluded properties, the equity in the rental properties at the date the parties married was not subject to division.
[47] Second, on the record, the increase in the value of Victoria Properties A and B was entirely due to market forces. On the authority of Jaszczewska, the post‑separation growth in the value of these properties plays a highly constrained role in the significant unfairness analysis.
[48] Third, it is unclear to me why the growth in the value of the properties after the parties separated should be viewed as a windfall to only one spouse. If an increase in the value of Victoria Properties A and B due to market forces amounts to a windfall, it is no less a windfall to Mr. Banh than to Ms. Chrysler.
[49] Finally, the judge’s award would result in readily identifiable unfairness to Ms. Chrysler. An award of 100% of the benefit of post‑separation growth to Mr. Banh means that Ms. Chrysler would be unable to access, use or earn any return whatsoever on her share of that family property for three and a half years. To illustrate the point, if Ms. Chrysler wished to invest her $72,500 award in the real estate market, her purchasing power would have declined very significantly from the date of separation to the date of trial due to market forces. On the facts of this case, that would be a very substantial loss.
Contact Us Early On To Increase Your Chances Of A Positive Outcome 1 877 602 9900
If you have questions concerning Short Marriages Equal or Unequal Family Property Division?, it is critical you call us early on in your case. Lorne MacLean, KC and Fraser MacLean would be pleased to assist you in Vancouver.
